Colorado baker’s case not a license to discriminate

Originally published June 10, 2018 at 10:01 am
Updated June 10, 2018 at 10:43 am

Gabriel Campanario / The Seattle Times

The U.S. Supreme Court’s Masterpiece Cakeshop ruling doesn’t give businesses broad permission to refuse gay customers. Yet it does serve as a warning to public agencies charged with defending civil rights.

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The U.S. Supreme Court’s decision siding with a Colorado baker who refused to create a wedding cake for a gay couple stopped short of condoning the baker’s conduct or declaring his actions legal.

That means the narrow ruling cannot be considered blanket permission for business owners to turn away gay customers, even if serving those customers conflicts with the owners’ religious beliefs.

To be clear, no one should be denied service based on their sexual orientation or who they choose to marry.

Yet the high court’s ruling should serve as a cautionary tale to government agencies charged with defending people’s civil rights. When pursuing anti-discrimination claims, these agencies must be careful to respect a person’s religion throughout the process, or risk having their work thrown out in court.

That’s what happened in the Masterpiece Cakeshop ruling from Colorado. A majority of Supreme Court justices agreed that the Colorado Civil Rights Commission showed “clear and impermissible hostility” toward the religious beliefs of baker Jack Phillips, who told a same-sex couple he would not create a cake for their 2012 wedding reception. Phillips argued that directing his artistic skills toward making the cake would send a message that he supports same-sex marriage, a position that conflicts with his religion.

The case was argued on free-speech grounds, but that wasn’t what prompted the court’s 7-2 decision to reverse a lower-court ruling. Instead, in his majority opinion, Justice Anthony Kennedy cited comments from a member of the Colorado Civil Rights Commission as evidence that commissioners didn’t give Phillips’ case fair and neutral consideration.

“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust,” one of the commissioners said in 2014. “And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

However, this ruling is unlikely to alter the outcome of a similar case from Washington, in which state Attorney General Bob Ferguson sued a Richland florist for refusing to provide flowers for a gay couple’s wedding. The Supreme Court is still deciding whether to take up that case after two lower courts sided with Ferguson and the same-sex couple.

Lawyers for the florist, Barronelle Stutzman, have alleged Ferguson has “repeatedly and overtly demeaned her faith” in court filings by comparing her religious beliefs about marriage to racial discrimination.

But unlike the Colorado commissioner, Ferguson has struck a tone that is remarkably evenhanded in his case against Arlene’s Flowers. In court filings, he called Stutzman’s religious views “sincerely held” and weighed them carefully, even while concluding her beliefs did not allow her to deny services to others when running a business in the public marketplace.

He mentions racial discrimination mainly to refute Stutzman’s defense that she would provide gay customers with flowers for other events, just not weddings.

“Just as it would be race discrimination for a florist to refuse to serve an interracial couple for their wedding, even if she would serve them at other times, it is sexual orientation discrimination for her to refuse to serve a same-sex couple for their wedding, even if she served them at other times,” Ferguson wrote in a brief to the Washington state Supreme Court.

Because the Arlene’s Flowers case lacks the issues that marred the proceedings in Colorado, it offers the U.S. Supreme Court the opportunity to rule on the larger question: Whether business owners can decline to serve customers based on a religious opposition to same-sex marriage.

Rather than kick the case back to a lower court for reconsideration, the Supreme Court should accept the case and rule that businesses cannot discriminate. If the court cannot summon a consensus to take up the case, the justices should at least decline it and leave in place Washington state’s Supreme Court ruling.

The Colorado ruling already is being misinterpreted as a license to discriminate. Our nation’s highest court should stop that, once and for all.